Mirror wills are a common choice for couples who want to simplify their estate planning. These wills are often seen as a convenient and cost-effective solution, allowing both partners to leave nearly identical instructions regarding the distribution of their estates. However, the assumption that mirror wills are legally binding or unchangeable after the death of one partner is not always correct. This article explores whether a mirror will can be contested, under what circumstances, and how individuals can protect their interests when faced with disputes surrounding mirror wills.
Understanding Mirror Wills
A mirror will is essentially a pair of wills created by two individuals, usually spouses or partners, that reflect each other’s intentions. For example, one spouse may leave their entire estate to their partner, with the estate passing to their children if the partner has already passed away. The other spouse’s will mirrors these terms, ensuring that their wishes align.
Mirror wills often appeal to couples because:
- They are straightforward and easy to draft.
- They allow for mutual arrangements, ensuring that the estate of the first to die is inherited by the surviving partner, and then ultimately by their chosen beneficiaries (e.g., children or family members).
- They are often cheaper to create compared to entirely separate wills.
However, despite their simplicity, mirror wills are not legally binding. Each will is an independent legal document, and either party can change their will without the other’s permission, even after the first partner has passed away. This freedom can lead to disputes, especially if the surviving spouse makes significant changes to their mirror will.
Can a Mirror Will Be Contested?
The short answer is yes, a mirror will can be contested. However, contesting a will is not a straightforward process. The law in England and Wales allows individuals to challenge a will under specific circumstances, but success depends on the grounds for the challenge and the evidence available.
Grounds for Contesting a Mirror Will
To contest a mirror will, the challenger must demonstrate valid legal grounds. These include:
Lack of Mental Capacity
A will can be challenged if the testator (the person who made the will) does not have the mental capacity to understand the nature and effect of the will when they created or executed it. For example:
- The testator did not understand the extent of their estate.
- They were unable to comprehend the implications of their decisions.
In cases of elderly testators or those with cognitive impairments, such as dementia, this ground is often cited.
Undue Influence
If someone exerted undue pressure on the testator to change or draft their will, the will can be contested. This often arises in situations where a new partner or family member influences the surviving spouse to alter their mirror will, potentially cutting out previously intended beneficiaries.
Improper Execution
For a will to be valid in England and Wales, it must comply with strict legal requirements:
- It must be in writing.
- The testator must sign the will in the presence of two independent witnesses.
- Both witnesses must sign the will in the testator’s presence.
If these formalities are not followed, the will can be deemed invalid.
Fraud or Forgery
If the testator’s signature was forged or someone fraudulently altered the contents of the will, the will can be contested.
Lack of Knowledge and Approval
The testator must fully understand and approve the contents of their will. If they were misled or unaware of certain terms, the will may be challenged.
Special Considerations for Mirror Wills
While the above grounds apply to most wills, mirror wills introduce unique challenges:
Changes After the Death of One Partner
One of the most contentious issues with mirror wills is the surviving spouse’s ability to change their will after the first partner has died. This often happens in cases where:
- The surviving spouse remarries and chooses to leave their estate to their new partner or stepchildren.
- The surviving spouse changes the beneficiaries, excluding those who were named in the original mirror will.
This raises the question: Can a surviving spouse change a mirror will?
Yes, they can. Unless there is a formal agreement, such as a legally binding mutual will (a different type of arrangement), the surviving spouse has the freedom to alter their will. This can lead to disputes, especially if children from the first marriage are disinherited.
Doctrine of Estoppel
Disappointed beneficiaries can sometimes bring a claim under the doctrine of estoppel. This legal principle applies if:
- The surviving spouse explicitly or implicitly promised that the terms of the mirror will would remain unchanged.
- The beneficiary relied on that promise to their detriment (e.g., by making decisions based on the expectation of inheritance).
- The change in the will causes the beneficiary to suffer a loss.
To succeed in such a claim, strong evidence is required, such as written communications confirming the agreement between the spouses.
Inheritance (Provision for Family and Dependants) Act 1975
If a new mirror will fails to make reasonable financial provision for a dependent, they can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. However, adult children must prove financial dependency on the deceased, which can be difficult.
How to Protect Mirror Wills
While mirror wills are convenient, they are not immune to disputes. Couples can take proactive steps to protect their intentions:
Use a Mutual Will
A mutual will is a legally binding agreement where both parties agree not to revoke or alter their wills without the other’s consent. After the death of one partner, the surviving spouse cannot change the terms of the will. This can provide greater certainty for beneficiaries.
Include an Asset Protection Trust
An asset protection trust allows couples to place their assets into a trust, ensuring that the intended beneficiaries receive them. This can prevent the surviving spouse from disinheriting the original beneficiaries.
Life Interest Trust
A life interest trust enables the surviving spouse to benefit from an asset (e.g., live in the family home) during their lifetime, while guaranteeing that the asset ultimately passes to specific beneficiaries (e.g., children from the first marriage).
Use a Mirror Will Template with Specific Clauses
When creating mirror wills, couples can include clauses that explicitly state their intentions, such as:
- A declaration that the mirror wills are made with the agreement that they will not be changed.
- Instructions for handling disputes or changes in circumstances.
Using a mirror will template that includes such provisions can reduce the likelihood of disputes.
When to Seek Legal Advice
If you are a disappointed beneficiary or suspect that a mirror will has been unfairly changed, it is essential to seek legal advice promptly. A solicitor experienced in contentious probate can:
- Assess the validity of your claim.
- Gather evidence to support your case.
- Represent you in negotiations or court proceedings.
Similarly, if you are creating a mirror will and want to protect your intentions, a solicitor can help draft a comprehensive and enforceable document.
Conclusion
While mirror wills offer a simple and cost-effective way for couples to plan their estates, they are not without risks. The flexibility for a surviving spouse to change their will can lead to disputes, especially when intended beneficiaries are excluded. However, mirror wills can be contested under specific circumstances, such as lack of capacity, undue influence, or improper execution.
For couples seeking certainty, options like mutual wills, asset protection trusts, or life interest trusts provide greater security. Whether you are creating a mirror will or contesting one, understanding the legal framework is crucial to protecting your rights and interests.
Ultimately, the question “Can a mirror will be contested?” has a clear answer: Yes, it can. However, the success of any challenge depends on the evidence, the grounds for contestation, and the legal strategies employed. If you are navigating these complex issues, seeking professional advice is the best way forward.